RM50 billion suit for discrimination against Tamil Schools

January 15th, 2013 by poobalan | View blog reactions Leave a reply »
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Not sure how many readers know about this. RM50 billion suit has to be the largest so far in the country. Usually its in millions only.

RM50 billion! Imagine what can be done with such a huge amount. Probably the country will go bankrupt if lose this case. Anyway, even if they win the case, I doubt the award will reach billion ringgits.

Let’s have a look at Article 12 (1):

Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth –

  • in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or
  • in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside the Federation).

And here is the famous Article 153:

  1. It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.
  2. Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.
  3. The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.
  4. In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.
  5. This Article does not derogate from the provisions of Article 136.
  6. Where by existing federal law a permit or licence is required for the operation of any trade or business the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.
  7. Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorised a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.
  8. Notwithstanding anything in this Constitution, where by any federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation-
    • (a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him;
    • (b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with he other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business; or
    • (c) where no permit or licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.
    1. (8A) Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.
  9. (9) Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak.
    1. (9A) In this Article the expression “natives” in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.
  10. The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.

With my limited understanding, Article 12 seems to say that every student and school must be given the same treatment in terms of funding. So, you can’t be allocating RM5 for SK student and RM4 for tamil school student for extra co-curricular activities, for example.

I also wonder, recently Tamil schools were to be given photostat machines (as announced by MIC President) via an anonymous donor. Does it mean that things like photostat machines are not provided by Education Dept/Ministry, or do they only provide for national schools or fully-aided schools, or based on any other parameters? Does that count as discrimination? Other things like salaries are standardised, so no issue of discrimination (that’s due to Article 136).

This is going to be an interesting trial, provided it gets its place in court and not simply dismissed.

 

Prime Minister Datuk Seri Najib Razak and his deputy Tan Sri Muhyiddin Yassin may soon be compelled to answer in court allegations they had discriminated against Tamil schools after the Court of Appeal today allowed a DAP lawmaker’s challenge.

Kota Alam Shah assemblyman, M. Manoharan and Indian politician P. Uthayakumar, were found by a three-man bench to have locus standi, Latin for the right to bring legal action, against Najib (picture), Muhyiddin, who is also Education Minister, and the federal government for what they said was a clear breach of constitutional rights on equality and access to education.

“The Court of Appeal allowed our appeal and said we have the locus standi… the case will go to trial,” Manoharan told The Malaysian Insider when contacted.

The High Court had last June struck out the civil suit, ruling that neither Manoharan nor Uthayakumar had a direct personal interest in the matter.

But the appeals court panel, chaired by Datuk Mohd Hishamuddin Mohd Yunus, said the duo could do so as their claims were premised on Articles 4, 8 and 12 of the Federal Constitution, which is public law and not private law.

Article 4 holds that the constitution is the supreme law while Article 8 guarantees equality in the law. Article 12, which Manoharan said was key to their suit, lays out the non-discriminatory rules with regards to access to education and its public funding.

“We want the PM to come and answer our claims.

“When the Constitution says education is equal, why is there a difference [in treatment] between Tamil schools and national schools?” Manoharan raised.

The lawmaker said he and Uthayakumar were seeking a declaration from the government that all 523 Tamil vernacular schools nationwide be fully-aided schools, and to be given financial assistance equal to that granted national schools.

Currently, only 370 Tamil schools nationwide receive any government funding, and even that is only partial, Manoharan said.

They also demand 10 acres of land be set aside for Tamil schools; a Tamil vernacular school for every district and in every state except for Perlis, Kelantan and Terengganu — the latter “because there are not many Indians there” according to Manoharan — and a Tamil educational institute, equivalent to the current junior science college set up for Malay students, built.

“And also a RM50 billion fund for 55 years of neglect of Tamil schools, to undo the injustices,” added Manoharan, who is also a lawyer.

He said the High Court has set January 29 for case management of his suit.

Despite Putrajaya’s various moves and initiatives, some Malaysians remain dissatisfied with the government’s role in helping vernacular schools.

In last year’s Budget 2012, the government gave a special supplementary allocation of RM100 million for the upkeep of vernacular schools.

source: http://www.themalaysianinsider.com/malaysia/article/najib-muhyiddin-sued-rm50b-for-discrimination-against-tamil-schools/

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